Excerpt: - orderbijayesh mukherji, j. 1. this is a rule obtained by the decree-holders in a partition suit, being title suit no. 14 of 1962 challenging the order of the munsif qua executing court under order 21. rule 100 and 101 of the code of civil procedure by which mritvuniay pal a pro forma defendant in that very suit, has been directed to be put into possession of the disputed property here - the northern portion of plot no. 902 admeasuring 11 acres, and forming part of the final decree .2. in the original suit, no relief was claimed against mritvunjay pal. all the same he was dispossessed of the property in controversy in execution of the decree by the decree-holders with the result aforesaid order for restoration of his possession. 3. ap a matter of words, o. 21, r. 100 has little repellent.....

Judgment:ORDER

Bijayesh Mukherji, J.

1. This is a rule obtained by the decree-holders in a partition suit, being Title Suit No. 14 of 1962 challenging the order of the munsif qua Executing court under Order 21. Rule 100 and 101 of the Code of Civil Procedure by which Mritvuniay Pal a pro forma defendant in that very suit, has been directed to be put into possession of the disputed property here - the northern portion of plot No. 902 admeasuring 11 acres, and forming part of the final decree .

2. In the original suit, no relief was claimed against Mritvunjay Pal. All the same he was dispossessed of the property in controversy in execution of the decree by the decree-holders with the result aforesaid order for restoration of his possession.

3. AP a matter of words, O. 21, R. 100 has little repellent here. A judgment-debtor means a person against whom a decree has been passed: vide section 2(10) upon which Mr Pal relies Mritvuniay is a person against whom no decree has been passed. He is, therefore a person other than a judgment-dentor within the meanims of Order 21 Rule 100. And such a one has been dispossessed of the immovable property in dispute here by the holders of the decree for possession thereof So, there is all that is required to invoke Order 21. Rule 100 Mritvuniav diri no more.

4. But an approach as this overlooks the basic fact that Mritvuniav was a party to the suit it is of the least materiality that no relief was sought against him All the same he was a party to the suit, and a party within the meaning of Section 47 of the Civil Procedure Code. Such is the law laid down by Nasim Ali and Mukheriea. JJ in Nirodte Kali Roy v Rai Harendra Nath Choudhury : AIR1930Cal113 as also by P. N Mookerjee, J., in the light of certain Privy Council decisions, in Moniur v. Ahammad. 56 Cal WN 506: (AIR 1953 Cs' 155). So soon as that is said, a suit, under Rule 103 by the unsuccessful decree-holder the 'petitioner before me, will be met with the unanswerable plea that Section 47 bars it That would have been the fate of Mritvunioy's suit too under Rule 103 had he been unsuccessful.

5. The position then come.-, to this: an successful applicant under Rule 100 will have to remain content with a non-appealable summary decision of the executing court. Worse, a suit under Rule 103, or even a regular suit, independently of that rule, will prove illusory, in that Section 47 will bar it at the threshold.

6. A position as this appears to be intolerable. In reality and technically too the disputt between the decree-holders and the pro form:, defendant Mrityuniay is a dispute between the parties, relating to the execution of the decree. Ergo, Section 47 appliet and Order 21. Rule 100 does not. The words 'any person other than the judgment-debtor' no doubt create a difficulty But this difficulty is capable of being overcome by taking these words to mean a third party - one who is not a party to the suit That is implied in the very nature of the thing. Otherwise R 100 comes to head-on clash with Section 47.

7. The authorities the learned munsiff goet by have not been overlooked But they cannot prevail over those T go by. In Kundalata v. Chandra Kamini : AIR1957Cal111 the munsiff follows, Nh'ud. Kali's case : AIR1938Cal113 and Monj'ur's case. 56 Cal WN 50fi=(AIR 1953 Cal 1551 were not referred to Had that been done the decision would not perhaps have been what it is. That apart the ratio therein can be justified on the principle that the minor defendant Inter dispossessed, was dismissed from the mortgage suit, as the mortgage of the suit was not binding on him. In a way therefore he was no party tn the suit.

8. It seems to be clear therefore that the munsiff has failed to exercise a juris-diction vested in him by law in not treating Mrityunjay's application as one under Section 47, which it really is, raising as it does a question between the parties in regard to the execution of the decree, with a right of two appeals and without the fetters of Section 115. More, the munsiff has gone by the test of possession only under R. 100, as indeed he is bound to go Under Section 47 however, he can go deeper even into the question of title, as indeed he should in view of the importance of the matter Nirode Kali's case. 42 Cal WN 87 = (AIR 1938 Cal 118) is an authority for the proposition that an executing court can even grant a declaration that the property proceeded against in execution is not the judgment-debtor's and therefore, not liable to be sold.

9. In the result, the rule succeeds and be made absolute The order complained of be set aside The matter be remitted to the court below for treating the application of Mritvuniay under Order 21. Rule 100 as one under Section 47 and for hearing it afresh on the existing evidence and such further evidence as the parties may adduce, for which they must have an adequate opportunity.

10. It is a fit case where neither party should get costs. I order so.